Criminal Appeal No. 393 of 2018 · Bombay High Court
Case Details
2023:BHC-AUG:26020-DB 1 CRI APPEAL 393 of 2018.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.393 OF 2018 1. Smt. Mangal Sainath Salve Age: 45 years, Occu.: Household, R/o. Indiranagar, Shirasgaon, Tq.Shrirampur, Dist.Ahmednagar. 2. Smt. Shital Nandu Gorde Age: 28 years, Occu.: Household, R/o. Indiranagar Shirasgaon, Tq. Shrirampur, Dist.Ahmednagar. Verus 1. The State of Maharashtra Through : The Police Station Officer, City Police Station, Shrirampur, Tq.Shrirampur, Dist.Ahmednagar. 2. Balasaheb Patilba Gorde Age: 43 years, Occu.: Labour, R/o. Shirdi, Tq.Newasa, Dist.Ahmednagar. 3. Mirabai Balasaheb Gorde Age: 41 years, Occu.: Labour, Resident as above. Address of Respondent nos.2 & 3 At present Kankuri Road, Shriramnagar, Sai Assara Guest house behind, Near Vitthal Mandir, Shriramnagar, Shirdi, Tq. Rahata, Dist.Ahmednagar. ..Appellants (Ori. Accused Nos.1 & 2) ..Respondents ... Advocate for Appellants : Mr.Joydeep Chatterji Additional Public Prosecutor for Respondent no.1 :Mr.S.D.Ghayal Advocate for Respondent nos.2 & 3 : Mr.Dhananjay A.Patil (Appointed) ... 1/23 2 CRI APPEAL 393 of 2018.odt CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATED : 6 DECEMBER, 2023 JUDGMENT (PER ABHAY S. WAGHWASE, J.) : 1. Feeling aggrieved and getting dissatisfied by the judgment and order of conviction passed by learned Additional Sessions Judge, Shrirampur, Dist.Ahmednagar dated 09-05-2018 in Sessions Case No.24 of 2017 convicting appellants for offence under Sections 302 r/w 34, 504 r/w 34, 506 r/w 34 and 120-B of the Indian Penal Code (IPC), exception has been taken by filing instant appeal. STORY OF PROSECUTION IN BRIEF 2. Deceased Bharati was married to original accused no.3 - Siddhant. Present appellant no.1 – Mangal (mother-in-law), appellant no.2, a widow and sister-in-law, namely Shital, original accused no.3 – Siddhant (husband) and original accused no.4 – Suraj (brother-in-law) and deceased were living together. Out of the wedlock, deceased and accused no.3 - husband had three daughters. On 02-04-2017, in the morning, mother-in-law i.e. appellant no.1 Mangal started quarreling with deceased for not doing work and even asked her to go to her parent’s house if she does not wish to work. Addressing her as a useless lady, she abused her. While deceased was giving fodder to the cattle 2/23 3 CRI APPEAL 393 of 2018.odt in the cattle shed at around 11:00 a.m., appellant no.1 poured kerosene on her person and directed appellant no.2 to ignite her. After injured was taken to the hospital and admitted, her dying declaration Exh.28 was recorded by PW-4 Chavan (PHC), on the strength of
Legal Reasoning
which crime was registered by Shrirampur Police Station for offence under Sections 307, 504, 506 of the IPC. PW12 Bhosle (API) carried out investigation and after gathering sufficient evidence, he chargesheeted accused. Bharati succumbed to burn injury and hence, the offence is converted into Section 302 of the IPC. On committal of case, learned Additional Sessions Judge, Shrirampur, who was seized with the matter, conducted trial, during which prosecution has adduced evidence of 12 witness. After recording statement under Section 313 of the Code of Criminal Procedure (Cr.P.C.), defence adduced evidence of DW1 Ananta. Learned trial Court heard both the sides, appreciated oral and documentary evidence and reached to a conclusion that prosecution failed to prove the case against original accused nos.3 and 4 i.e. husband of deceased and brother-in-law of deceased, but held charges proved as against original accused no.1 - mother-in-law and original accused no.2 - sister-in-law of deceased and convicted them as spelt-out in the operative order of the impugned judgment. 3/23 4 CRI APPEAL 393 of 2018.odt SUBMISSIONS On behalf of appellants : 3. Learned Counsel for appellants would point out that admittedly case is based on dying declarations. He pointed out that here there are three dying declarations, but none according to him are consistent. He read before us all three dying declarations Exhibits 28, 37 and 52 and would strenuously submit that not only dying declarations are inconsistent but they are each time improvised to merely falsely implicate appellants. He would submit that deceased was reported to have suffered in all 92% of burns and therefore, he doubts very capacity of deceased to give not one but multiple dying declarations that too in detail. He also invited our attention to the communication made by Police i.e. MLC case dated 02-04-2017 Exh.27 and would submit that history of burn was reported to be of blast of stove. That even prosecution own witness PW11 Dr.Karad, a Doctor, where deceased was admitted, in cross-examination has candidly admitted about history given as stove burst. He pointed out that inspite of occurrence taking place at around 11 a.m. on 02-04-2017, dying declaration is not recorded by PW4 Chavan (PHC) immediately, but it is apparently recorded in the evening and therefore, there is delay as well as ample scope for tutoring by relatives, who had shortly reached hospital and were in the company of deceased. 4/23 5 CRI APPEAL 393 of 2018.odt 4. He next submitted that in first dying declaration Exh.28 mere initials of deceased is obtained, which is unidentified as well as not attested, whereas in second dying declaration Exh.37, there is neither thumb impression nor any signature. He questioned that what was need of recording third dying declaration Exh.52, which is apparently not only lengthy but in detail and the material appearing therein is not stated by deceased in her alleged first two dying declarations. For all above reasons, he submits that dying declarations are apparently not voluntary but even product of tutoring for false implication. 5. Taking us through the evidence of Scribes to both dying declarations PW4 Chavan (PHC) and PW6 Jadhav (Circle Officer), it is submitted that they have admitted in cross-examination that time of commencement and conclusion is not noted in the dying declaration. Further there are material omissions also. He pointed out that the aunt-in-law and appellant no.1 herself had shifted deceased to hospital, but the aunt-in-law has not been examined for the best reasons known to prosecution. 6. He further pointed out that admittedly deceased had suffered burns over entire body including her palms and fingers and bandages were required to be applied to such parts of which PW6 Jadhav Scribe has candidly admitted in cross-examination and therefore, he would question by submitting that how signature of deceased could at all be obtained on Exhibits 28, 37 and 52. It is 5/23 6 CRI APPEAL 393 of 2018.odt also his submission that though father and mother of deceased are examined as PW7 Balasaheb and PW8 Mirabai and though they claim to have reached hospital and further have claimed about receiving oral dying declaration, he pointed out that they have not promptly reported the same to Police. That they are assigning different reason for annoyance of appellants that is deceased begetting only girl children, which according to learned Counsel, has not been stated by deceased herself. Even according to learned Counsel, certificate of fitness is not appearing on Exh.28 i.e. on the basis of which crime is registered and on Exh.37 or Exh.52 and therefore, on such count also he questions credibility and veracity of so called dying declarations. It is also his submission that PW11 Dr.Karad has candidly admitted about history. 7. Lastly he submitted that dying declarations are not only delayed but are full of inconsistencies, infirmities and therefore, learned trial Court ought not to have accepted the same and recorded the guilt. However, according to him the same having unfortunately so done, he seeks interference in the findings and impugned judgment by allowing the appeal. On behalf of State : 8. In answer to above, learned APP would submit that there are multiple dying declarations in which role of both appellants in clearly defined. That 6/23 7 CRI APPEAL 393 of 2018.odt her all dying declarations are consistent in that regard. That on the day of occurrence, dying declaration was recorded and crime was registered. He submitted that investigation was carried out, which revealed complicity of accused and as the dying declarations and evidence were inspiring confidence, learned trial Judge has rightly held both appellants guilty and as there is no merit, he would submit that appeal be dismissed. PROSECUTION WITNESSES 9. To support its case, prosecution has examined as many as 12 witnesses. Their status and role is as under : PW1 Somnath Garbhaji Gorde is Pancha to seizure of clothes of accused no.1. Recovery panchanama is at Exh.21. His evidence is at Exh.20. PW2 Dattatraya Baban Gorde is maternal brother of deceased. His evidence is at Exh.23. PW3 Bhausaheb Balaji Supekar is Pancha to seizure of clothes of deceased. His evidence is at Exh.24. PW4 Sahebrao Shivram Chavan is Police Head Constable who recorded first dying declaration Exh.28 of deceased. His evidence is at Exh.26. PW5 Bajirao Satu Waghadkar is grandfather of deceased. His evidence is at Exh.32. PW6 Bhalchandra Dattatray Jadhav is Circle Officer who recorded second dying declaration Exh.37. His evidence is at Exh.25. 7/23 8 CRI APPEAL 393 of 2018.odt PW7 Balasaheb Patilba Gorde is father of deceased. His evidence is at Exh.38. PW8 Mirabai Balasaheb Gorde is mother of deceased. His evidence is at Exh.39. PW9 Vedprakash Bhagwat Upadhye is Medical Officer at Pravara Rural Hospital, Loni. His evidence is at Exh.41. PW10 Aakash Dinesh Joshi is Residential Doctor at Pravara Rural Hospital, Loni, who issued MLC to Police Station. His evidence is at Exh.43. PW11 Dr.Amit Dhondiram Karad is Medical Officer at Pravara Medical Hospital, Loni. His evidence is at Exh.45. PW12 Mohan Bajirao Bhosle (API) is Investigating Officer. He recorded dying declaration Exh.52. His evidence is at Exh.48. DEFENCE WITNESS Defence has examined one witness. DW1 Ananta Subhash Ghode. His evidence is at Exh.60. 10. Here case prosecution is entirely based on dying declarations. Out of four original accused, only accused nos.1 and 2 i.e. mother-in-law and sister- in-law of deceased are held guilty by the learned trial Court. LAW ON DYING DECLARATION 11. Case being based on dying declarations, we wish to give brief account of law on manner of appreciation of evidence in the form of dying declaration as 8/23 9 CRI APPEAL 393 of 2018.odt well as settled principles which are culled out by the Hon’ble Apex Court from the various landmark cases like Khushal Rao v. State of Bombay; AIR 1958 SC 22, Paniben v. State of Gujarat; (1992) 2 SCC 774, Laxman v. State of Maharashtra; (2002) 6 SCC 710, Ganpat Bakaramji Lad v. State of Maharashtra; 2011 ALL MR Cri. 2249. Surendrakumar v. State of Punjab;
Decision
ORDER II.The conviction awarded to the appellants-accused nos.1 - Mangal Sainath Salve and 2 - Shital Nandu Gorde in Sessions Case No.24 of 2017 on 09-05-2018 by learned Additional Sessions Judge, Shrirampur, District Ahmednagar for the offence punishable under Sections 302 r/w 34, 504 r/w 34, 506 r/w 34 and 120-B of the Indian Penal Code stands quashed and set aside. III.The appellants stand acquitted of the offence punishable under Sections 302 r/w 34, 504 r/w 34, 506 r/w 34 and 120-B of the Indian Penal Code. IV.The order in respect of granting compensation to respondent nos. 2 and 3 also stands quashed and set aside. V. The appellants be set at liberty, if not required in any other case. VI.We clarify that there is no change as regards the order of disposal of muddemal. VII. Fine amount deposited, if any, be refunded to the appellant after the statutory period. VIII. Fees of the Advocate appointed for respondent nos. 2 and 3 is quantified at Rs.7,000/- (Rupees Seven Thousand only), to be paid by the High Court Legal Services Sub-Committee, Aurangabad. [ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.] SPT 23/23